The plan reviewed today represents the eight opportunity, the Florida legislature has had in the last four years to adopt a constitutional apportionment plan not counting numerous opportunities before that.

This case was filed in March 1962.

In 1964, this Court reversed the District Court's dismissal of the case.

On February 25th of this year, this Court again reversed the District Court which had given the legislature until 1969 to convene a validly apportion of the legislature and remanded to the District Court so that a valid reapportionment plan could be made effective for the 1966 elections.

This is an appeal from the latest decision of the District Court which held the deviations in the last Florida legislative plan adopted March 10th did not discriminate to use the lower court's language to any great extent.

We are here for the third time because we believe the standards of your reapportionment cases have been disregarded by the District Court for the third time.

The Florida plan is not an honest and good faith effort to construct districts in both houses of the legislature as nearly equal in population as it's practicable with only such minimal departures as necessity demands.

It is not a plan under which all votes are counted equally.

The current plan provides 48 senators and 117 representatives.

The court below found that the senate districts ranged from 15.9% overrepresented to 10.56% underrepresented or a deferential in the senate between the largest district and the smallest district of over 30%.

In the House, the court found that the district's range from 18.28% overrepresented to 15.27% underrepresented or a deferential between the largest and the smallest districts of over 41%.

Now, in plain language this means that three votes in the most overrepresented senate district will have the weight of four votes in the most underrepresented senate district.

And that four votes in the most overrepresented house district will have the weight of five and a half votes in the most underrepresented house district.

Standing by themselves alone, we think these variances are too great to pass the constitutional test laid down by this Court.

However, when we couple list statistics with an inquiry to see if this was an honest in good faith attempt to construct districts as nearly equal in population as practicable, we come upon some rather startling facts.

This plan was adopted by an experienced legislature in direct derogation of the reapportionment standards which had been clearly articulated to it.

First, by this Court in its 1964 decision, secondly, by our lower court in its 1965 decision striking down a legislative plan in which that court stated and I quote from that decision, “only such minimal departures as necessity demands will be permitted.

Variations are to be sanctioned only when they cannot be avoided.”

Thirdly, by my Brother counsel, the Attorney General in a document which he distributed to every member of this legislature before the legislature began to sit, entitled “Criteria and Guidelines” for reapportionment as established by the federal courts.

In that document, he told each member of the legislature the following; the allowable mathematical percentage variants differs in some of the Supreme Court decisions.

However, a study of these decisions reveals that a percentage variants of more than 15% would be difficult to sustain as complying with one man, one vote.

And lastly, the legislature had before it the very plan which appellants had filed in this proceeding at the request of the Court.

The plan which had the same none population characteristics, the integrity of county lines and the contiguity of the districts and yet in the plans submitted by appellants which the legislature had before it for consideration.

There was less than a 3.5% variance.

Now, with all of that guidance, what do we find that the legislature adopted?

A plan with variances well in excess of 15% and a plan that manifest a clear pattern of discrimination against the more populous counties.

The only counties underrepresented in the Senate by 10% or more are two of the most populous counties in the state, Duval and Palm Beach which ranked second and seventh in the state.

Justice John M. Harlan: (Inaudible)

Mr. D. P. S. Paul: The variance that would be permitted?

I do not think that this Court has laid down any algebraic formula or variance that will be permitted.

I think the formula is laid down in Reynolds versus Simms and in Roman versus Sincock is that there should be no variances from the ideal standard except minimal ones and ones which can be justified and the plan before the court there is no justification for the size of the variances on the legislative plan.

Over 14% of the state's population --

Justice John M. Harlan: (Inaudible)

Mr. D. P. S. Paul: No.

I do not think that that large of tolerance would fit their --

Justice John M. Harlan: (Inaudible)

Mr. D. P. S. Paul: I think that the tolerance depends upon the particular circumstances of the plan.

This Court has never laid down an exact mathematical formula.

It is characterized the tolerances as minimal and I think that the tolerances in this plan cannot be characterized as minimal.

Justice John M. Harlan: (Inaudible)

Mr. D. P. S. Paul: I think certainly not more than 3% or 4% would be the minimal tolerances and then only if it were shown that those tolerances could not have been avoided in the plan which was adopted.

Those two counties which are underrepresented by more than 10% in this plan contained 14% of the state's population or in other words, one out of every seven people in Florida lives in those populous underrepresented counties.

In addition, one of those two is also underrepresented in the House plan by almost 8%.

So, there is accumulative effect of discrimination that the court pointed out in the Lucas effect.

Now, what do we find on the other side who is the most overrepresented in the Senate?

Three of the least populous counties by over 15% in the House the same pattern of discrimination exist.

The majority of the overrepresented districts consist of the less populous counties with a little manatee leading the list with 18.3% overrepresented whereas the eight largest county in the state is 15.3% underrepresented.

We have given several other examples in our brief of this pattern of discrimination against the populous counties which we find in this plan.

Now, the lower court and the Attorney General passed this discrimination off in a very cavalier way without making any effort to explain the reason for this discrimination.

The lower court concedes in its decision the deviation exist.

We submit the burden is on the Attorney General to justify it.

These variations are not ones which in the language of the court's opinion could not be avoided.

They cannot be justified on any desire not to split county lines.

For example, in the plan, we find in one district which would have been ideally apportioned, the legislature purposely malapportioned it.

The legislature clearly was not concerned here with breaking county lines but with breaking hearts, hearts of the legislators who seeks -- should have been reapportioned.

We have a curious philosophy that seems to prevail in the Florida legislature and that is that the legislative seats belong to the individual legislatures who hold them not to the people who elected them.

One more fact clearly indicates a lack of good faith in the attempt which the legislature made and that is the size of the plan examined today.

This is the largest legislature in the history of Florida.

Since the legislature sometime ago began tinkering with the size of the legislature.

The Senate has crept from its original size of 32 to 48 and the House from 68 members to a 117 members.

Reapportionment in Florida has come to me not reallocation of existing seats but the addition of new seats in playing unvarnished ad hock personal legislation to keep the legislators there who no longer belong there under the latest federal census.

The personal nature of the present plan if illustrated by the grand fathering of three of the Senators and providing a residence requirement whereby the people are denied the right to vote for a candidate who resides in their district to ensure the election of a favorite senator from the less populous and different district.

If this Court's standards are to be avoided by such patently bad faith attempts, the importance of reapportionment in the revitalization of our state legislatures will be lost.

We submit that legislative packing is not good faith legislative reappointment.

That is why in the plan we submitted we started with the last constitutionally valid plan approved by the people of Florida.

The plan which the legislature has adopted, they have been very careful not to submit to the vote of the people.

We started with this last constitutionally valid plan.

The 32-man Senate in a 68-man House within those limits legally set before unreviewed state court decisions erroneously eroded them appellants have at the lower court's request filed a plan under which no county has split, all districts are contiguous and the maximum deviation is less than 3.5%.

Our plan is rather --

Chief Justice Earl Warren: May I ask this counsel?

Is that -- that your plan fall into play a different size -- Senate and a different size of the House than the one that's under review here?

Mr. D. P. S. Paul: Yes.

We started with the last constitutionally valid size house in legislature, a 32-man Senate and a 30 -- and a 68-man House.

The plan which is reviewed here today has a substantially larger numbers in both the House and the Senate, 48 senators and a 117 representatives.

Chief Justice Earl Warren: So, you claim that was -- did you claim also that was in violation of the state constitution?

Mr. D. P. S. Paul: No.

My virtue of -- as I said unreviewed state court decisions which have eroded the original number size and have advised the legislature in an advisory opinion that the federal court decisions have knocked the number limitations out of the Florida constitution.

We did not make that contention although we do think those decisions are erroneous.

They have not been reviewed by this Court.

Justice Byron R. White: Well, you're not asking this Court, are you?

The -- or are your claiming is that --

Mr. D. P. S. Paul: We think that is the appropriate remedy at this stage of this proceeding.

Justice Byron R. White: This Court could do that?

Mr. D. P. S. Paul: Or to give directions to the District Court to put that plan into effect in time for the April session of the Florida legislature.

Our plan has been rather sarcastically described in -- by one of the appellees as a plan that disregards relevant factors other than population.

Now, appellees don't tell us what those other relevant factors are.

Clearly, they're not county lines and they are not contiguity of districts.

This Court has said many times that each state's plan must be examined in the light of its own special circumstances.

As the court pointed out in Reynolds versus Simms what is marginally permissible in one state maybe unsatisfactory in another depending on the particular circumstances of the case.

The Attorney General has never commented on the appellants plan or more importantly has never attempted to justify the deviations in the Florida plan by any unique circumstances relating to Florida instead he devotes a great part of his brief comparing the Florida plan with other states if these were some justification for the wide variances in the Florida plan.

Appellants plan shows that these wide variances cannot be justified by a desire not to split county line or to avoid none contiguous districts.

We think the Attorney General should tell the court today what justification there is for these wide variances in the Florida plan and explain for what reason these variances exist in the legislative plan when they do not exist in the plan submitted to the court.

Where the variances are as great as they are in the Florida plan, the burden is on the Attorney General to justify their constitutionality.

We believe that the Florida experience indicates the need for this Court to reaffirm that there is no maximum permissible deviation.

That the court's reapportionment formula is not algebra but that only such variances from the one man, one vote rule will be tolerated as cannot be avoided.

Since the reapportionment cases, the lower courts have gone in two directions.

One group has taken its obligation seriously and has attempted to determine how close a reapportionment plan can come to meeting exactly the reapportionment standard.

That is that each vote should be counted equally.

They have compared the enacted legislative plan with the one suggested as the best possible and if there is no justification for the variances in the enacted plan they have judicially crafted it or it enacted a better plan.

Another group has taken the opposite approach to see how far the legislature can deviate for maximum equality without transgressing constitutional limitations.

This group accords a presumption of validity to the act of an invidiously discriminatory body.

If this Court is going to allow its reapportionment decisions to be diluted by this maximum permissible deviation school we believe it will have entered the political picket and come out with nothing but a thorn.

In its February decision this year, this Court directed that a valid reapportionment plan should be made effective in Florida for the 1966 alleged elections.

We believe that the legislature and the District Court fail to carry out this mandate.

In the language of Reynolds and Simms if there has ever been a case in which the legislature has failed to reapportion according to federal constitutional requisites after having had an adequate opportunity to do so and therefore judicial relief becomes appropriate this is that case.

But the Florida legislature does not meet until April 4th.

The adoption of a new constitution for the state of Florida it's one of its prime announced objectives of the new legislature.

We submit proper judicial relief would be to place into effect appellant's plan where the maximum deviation is less than 3.5% in time to be effective for the 1967 session of the Florida legislature and before the adoption of a new constitution.

Chief Justice Earl Warren: Would that be necessary to -- in any decision which would permit you to prevail?

Mr. D. P. S. Paul: No.

That relates strictly to the relief, the court of course has several alternatives, they could send the matter back to the District Court for purposes of providing the appropriate relief or they could direct that the legislature itself placed into effect a constitutional plan prior to the meeting of the 1967 session.

But we think that it would clearly be within the court's discretion in view of the long reapportionment history in Florida and legislatures continued refusal to avail the mandates of this Court and to enact the constitutional plan.

We think it would be appropriate to place this plan in to effect.

We do not think the people of Florida should be denied a constitutionally apportioned legislature any longer particularly when constitutional revision is directly on the rise.

Chief Justice Earl Warren: If you were to prevail on your dissent back, wouldn't it be for proper apportionment wouldn't it be just as possible for the legislature to do what you have done with the number of legislators that they desire to have in the state?

Mr. D. P. S. Paul: It would be if the legislature had any desire to so do, the plan which we submitted to the court was introduced in the legislature and the legislature did not even consider it, never even got to commit it.

But it would be certainly be perfectly possible.

Chief Justice Earl Warren: Attorney General Faircloth.

Argument of Earl Faircloth

Mr. Earl Faircloth: Mr. Chief Justice, may it please the Court.

In times passed when I have not agreed that the product of the Florida legislature was a good faith attempt to meet the guidelines laid down by this Court I have said so.

On this occasion, as we come before the court once again, it is my position that this product of the Florida legislature which is now before the court does represent a bona fide good faith effort on the part of this legislature to construct a rational plan of apportionment based upon population as the point of departure.

And in my reply here to my Brother Mr. Paul and I should like to touch upon these points.

First of all, I would like to contend that his standing here as an appellant is not in best posture.

Secondly that this plan is within the guidelines which the legislature of Florida understood and it was a reasonable understanding I think of what the guidelines were.

Thirdly, that there is no pattern of invidious discrimination in this plan which is now before the court and finally as I said this is a representive -- representative of the good faith of this legislature in adopting a population based reapportionment plan.

Now, as to the appellants Mr. Swann or Judge Swann as he is now and Dade County, the most populous county in Florida which I too, I'm a resident and citizen.

In this plan, Dade County and the House of Representative has an almost perfect break on the mean legislative House district.

I believe they're underrepresented by about 0.43 in their House of Representative districts.

They are underrepresented by 5% plus in the Senate and so I say that so far as the litigants here, the appellants are complaining, their complains are de minimus departures from the mean average in both the House and the Senate.

And that they're standing to complain is not in its good posture as it has been in other trips to this Court on which occasions I was trying to agree with them.

Now, secondly within the guidelines --

Chief Justice Earl Warren: Do you mean from that that they are not properly here?

Mr. Earl Faircloth: Yes sir.

I feel that they -- they are not hurt by their own admission before the lower court, the attorney for Dade County admitted that he couldn't complain about the formulas so far as Dade County was concerned.

And of course, the appellant Swann is also a citizen and resident of Dade County and so far as his complain is concerned stands in the same posture.

Justice William J. Brennan: But Mr. Attorney General, I gather they were the litigant -- the original plaintiffs --

Mr. Earl Faircloth: Mr. Swann was, yes sir.

And Dade County was original --

Justice William J. Brennan: And then -- he moved his standing even though this litigation is complete?

Mr. Earl Faircloth: Well, I feel that he personally as a citizen of Dade County his vote is not discriminated against by -- he is given an equal way in his county and that what he was seeking to begin with.

Justice William J. Brennan: But he started the lawsuit, he's not yet happy with the --

Mr. Earl Faircloth: That's right.

Justice William J. Brennan: -- result below and he keep pressing to something better --

Mr. Earl Faircloth: We've set his finding --

Justice William J. Brennan: -- and he now suggests he moves his standing because his county of equal is in good faith.

Mr. Earl Faircloth: Well, that's right.

He had a lot to complain about when he started with this county but I say that he now has the very minimum departures on the average.

Justice Hugo L. Black: (Inaudible)

Mr. Earl Faircloth: I suppose they are carried to that extreme, it would be Your Honor.

Justice William O. Douglas: How many interveners were denied the right to review, were they several or --

Mr. Earl Faircloth: There were several Your Honor.

I think the court allowed amicus briefs but refused to allow the parties to intervene.

So, on that point I think it is true that many interveners were denied the opportunity to come in.

But may I address myself to the merits of the plan which is before the court.

First of all, in summary this plan has 48 senators and 117 representatives.

The maximum population variance ratio is 1.3 in our Senate.

Justice Byron R. White: Now, do you mean that there is at least one county which is that 30% more population than the mean county or than the average?

Mr. Earl Faircloth: Your Honor that is the percentage difference between the largest district and the smallest district.

Justice Byron R. White: Right, now this is -- this is not the variation from the north?

Mr. Earl Faircloth: No sir, that's right.

Justice Byron R. White: It is because of the comparison between the largest and the smallest county.

Mr. Earl Faircloth: The largest --

Justice Byron R. White: The ratio between the largest and smallest?

Mr. Earl Faircloth: That is right, the largest district is 1.3% larger than the smallest district.

Justice William J. Brennan: Well, I wonder if I could translate that in this --

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: -- I figured (Inaudible)

Is that -- was it 87,595 of the small represented by how many Senator?

Mr. Earl Faircloth: That would be one senator.

Justice William J. Brennan: One senator?

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: And then 114,053 also by one senator?

Mr. Earl Faircloth: By one senator, yes sir.

Justice William J. Brennan: Is that it?

Mr. Earl Faircloth: That is right.

Justice William J. Brennan: Well, but aren't they multiple members in its area of business?

Mr. Earl Faircloth: That is right.

Justice William J. Brennan: And (Inaudible) --

Mr. Earl Faircloth: That's right.

We merely use the population variant.

Justice William J. Brennan: This is per senator?

Mr. Earl Faircloth: That is right, yes sir.

There are many district, many multiple member districts in our Senate as well as in the House of Representatives.

So, in the House of Representatives then the maximum population variants ratio is 1.41% --

Justice William J. Brennan: Now, that's from 34,584 to 48,000.

Mr. Earl Faircloth: That is right.

The legislature here and if I may say in support of the proposition that it is a rational plan, they started out to apportion on the basis of the congressional districts.

We have 12 congressional districts in Florida and there is where we get 48 senators.

It was thought to make four senators from each congressional district and of course when they get down with members of the legislature to hammer out of plan with the practicality is being what they are.

There were -- it was impossible to subdistrict all of them.

For example in the most rural of our congressional districts and we have 24 rural counties and the four senators ran at large in all 24 of these counties.

I have a feeling that in the next session that will be subdistricted but it will be subject -- subdistricted that I feel certain on the basis of population as nearly as they can come to it.

The part of the rationality of the legislature was to preserve county lines as much as they could, but at the same time to base it upon population.

And so in summary on the guidelines, I'd like to point out that of course I agree with the court's position in not making a rigid mathematical formula out of it.

I think that would be extremely unworkable.

Mathematics of valuable only so far as I can see for comparison purposes to plans that have been found to be valid and free of invidious discrimination and if I could refer to at least three cases which I believe has been before this Court in the last months or within the last year.

In the State of Colorado a plan which was affirmed by this Court, the ration in one house was 1.46% and in the other house was 1.73%.

In Virginia, the population variants ratio in one house was 1.37% and in the other 1.53% and in Wyoming a plan approved or affirmed by this Court the variants ratio in one house was 2.08% and in the other 2.59% compared to Florida with 1.3% in the Senate and 1.41% in the House of Representatives.

Justice Byron R. White: Have you looked in those cases to see if the states afford to justify the variances?

Mr. Earl Faircloth: All I saw Your Honor was that it came before this Court it was affirmed --

Justice Byron R. White: It is so per curiam affirmance?

Mr. Earl Faircloth: That's right.

I did note that Florida in the relationship of a number of people or percentage of people that takes to elect the majority of the legislature in the House of Representatives in Florida I believe it's 50% almost exactly can elect 50% of the House of Representatives.

Justice Byron R. White: What about the -- does Florida have any explanation at all for these variances or do you think there should just be a rule affirmed that as long as the variances are greater than X, that's the end of the matter.

Mr. Earl Faircloth: Well, Mr. Justice White, I believe on each individual theories, there would be an explanation.

I could take the time of the court in some instances and I'm sure give a political reason for it.

Why this senator and this representative and whether this group of senators couldn't agree on any thing less than that.

My thought is that they are now convinced and trying to work toward an apportionment plan which is following a rational basis and its population based.

I recommended to them as my Brother Mr. Paul pointed out that a variance of more than 15% would be hard to sustain.

I don't think that should be a rigid group because --

Justice William J. Brennan: Mr. Attorney General.

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: With no hearing I gather evidence taken on the justification that you suggest --

Justice William J. Brennan: Would you suppose our cases require that these other -- I don't recall the records frankly, --

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: -- that other case is Wyoming and Virginia versus (Inaudible) but it may well be that there were records made there --

Mr. Earl Faircloth: Well, --

Justice William J. Brennan: -- on the justifications --

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: -- for the departures.

Do you know where they were now?

Mr. Earl Faircloth: They were in -- there was no testimony taken, no sir.

Justice William J. Brennan: By those other cases?

Mr. Earl Faircloth: No.

I can't say that.

I don't know.

Justice William J. Brennan: Yes, I don't know --

Mr. Earl Faircloth: My impression has been that in a Texas case some briefs were filed and tables were filed in this -- and -- but and I believe there might have been some testimony taken in the Texas case.

Justice William J. Brennan: Oh, I just wondered if -- I forgot, it was -- was it wrong in Sincock?

One of them, didn't we indicate if they were to be departures like this, perhaps they'd be alright but that there had to be justifications established by proofs?

Mr. Earl Faircloth: Your Honor, I'm not aware of that and perhaps I should be --

Justice Byron R. White: Now, well are you -- I maybe wrong.

Mr. Earl Faircloth: Yes sir.

I wouldn't quarrel with that being a very good idea though because I think perfectly, fine explanations could be made about the departures here.

Justice Byron R. White: You mean you should -- you don't think that within the 15% (Inaudible) that you suggest that we should assume the constitutionality of the apportionment plan, given that -- given to them instead of a presumption that there was a reason.

Mr. Earl Faircloth: Your Honor, I will concede that if it was absolutely no departure beyond 15% that it could be --still be discriminatory.

On the other hand --

Justice Byron R. White: Well, as far as the evidence of this case to go that -- that these variances are not discriminatory.

We aren't going to act on a presumption that there was a reason -- that there has to be a reason, we have to presume a reason in this case if it's going to be sustained, I suppose.

There's no -- I don't see any -- is the record -- it's printed here as we got any information of the difference between the largest and the smallest?

Mr. Earl Faircloth: I will concede Mr. Justice White that the brief contains a lot of typos and population ratios and so on and perhaps it would be better if the court indicated that there must proofs submitted as the justification from the variance of an exact percentage population.

Well, then I'm sure that we could comply but we haven't been laboring under the apprehension that that is what was required of us.

If it is, we can, the 15% rule of course was --

Justice Byron R. White: Must there -- most of your reasons, you got them it would be purely political compromised reasons, wouldn't they?

Mr. Earl Faircloth: I'm afraid you're right.

Justice Byron R. White: You mean, there wouldn't be because of the county boundary or because of the distinctive character of this county as compared to another it would be a --

Mr. Earl Faircloth: Exactly --

Justice Byron R. White: -- it would be a confrontation of --

Mr. Earl Faircloth: Yes.

Justice Byron R. White: -- political power, wouldn't it?

Mr. Earl Faircloth: That is exactly right and I think that the only value of a 15% rule or 10% rule would be to allow some area for that kind of maneuvering in this political picket as it has been called.

And so I think statistically which is what we largely based it upon, the departures, I don't think that there is any discernable or palpable pattern here of bad faith and an attempt to discriminate against anybody.

Justice William J. Brennan: Excuse me Mr. Attorney General.

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: Would you bring me up a date on the time table?

You've just elected a legislature, I think.

Mr. Earl Faircloth: Yes sir.

Justice William J. Brennan: And it --

Mr. Earl Faircloth: Convenes in April.

Justice William J. Brennan: In April.

Mr. Earl Faircloth: For its biennial session, yes sir.

Justice William J. Brennan: For two years?

Oh, a session that is you meet every two years?

Mr. Earl Faircloth: That's right.

Justice William J. Brennan: Well, I'm trying to explore this business, that they -- that there had to be a theory on justification, suppose we would've concluded it, it should've been and that's -- it sort of go back to the District Court for that picket.

Mr. Earl Faircloth: Your Honor.

Justice William J. Brennan: Would that all be completed before --

Mr. Earl Faircloth: Well, Your Honor it would be a very extremely bad situation and really hard for us to do.

Justice William J. Brennan: Your next election is not now (Inaudible).

Mr. Earl Faircloth: No sir, its two years from now.

I might point out and depends in the Florida legislature that -- and our Governor that within hours after this Court's reversal and remand of the previous case, the Governor had called the legislature into special session and required them to consider a reapportionment plan recommended that they consider it on the congressional district lines in time for the primary elections which were then in progress and the time for qualifying was set back somewhat so that the new plan, this plan could be put into effect in time for the spring primary elections.

That was all done under this plan and then in November 8th, this legislature was elected under this plan and will meet in April of this year for its biennial session.

So, we have complied before the election but I don't know about the difficulties of complying before the session meets in April.

I might submit Your Honor that we might ask the same indulgence that the court has given to our sister State of Georgia, a plan which was demonstrably unconstitutional and conceded to be.

I believe the Georgia ratio there was 1.81% in one house and 2.005 in the other.

Justice William J. Brennan: I suppose in this inference in the Georgia case in order of this Court which approved the plan under which the legislature as I recall it was elected on November 8, in the Georgia case.

Mr. Earl Faircloth: Well, it approved it until a certain time in the future.

Justice William J. Brennan: Yes, but approved it for the purposes --

Mr. Earl Faircloth: Yes.

Justice William J. Brennan: -- that (Inaudible) --

Mr. Earl Faircloth: That's right.

Justice William J. Brennan: There is no such order of this Court --

Mr. Earl Faircloth: That is right.

Justice William J. Brennan: -- that indicates, there is only of the District Court.

Mr. Earl Faircloth: That is right.

And when the District Courts --

Justice William J. Brennan: We didn't state an order.

Mr. Earl Faircloth: Sir?

Justice William J. Brennan: We didn't state that order, didn't we?

Mr. Earl Faircloth: No sir.

Justice William J. Brennan: Were there a possibility?

Mr. Earl Faircloth: I'm not sure, are you speaking of the Georgia case Mr. Justice?

Justice William J. Brennan: No, of your case?

Oh, well, we asked before to stay that election after that or (Inaudible).

Mr. Earl Faircloth: I'm not sure.

Justice William J. Brennan: (Inaudible)

Mr. Earl Faircloth: My Brother Paul has asked a lot, he might -- he may have.

Mr. Justice White, excuse me.

Justice Byron R. White: This claim now stands in the -- was approved as a permanent finding.

Mr. Earl Faircloth: That is right, it's approved by the lower court as a permanent plan, acceptable in all respects.

So, my thought is that if it should be found not to be then accord us the same considerations as Georgia.

Tell us what's wrong with it and let us meet with this legislature that has been elected and I feel certain that this legislature will in good faith apply with whatever the rule is or whatever they understand the rule to be.

Justice Hugo L. Black: Is there any difference in the history of the proceedings in Florida and in Georgia with reference to the -- being the orders of the court?

Mr. Earl Faircloth: I don't believe so Your Honor.

Justice Hugo L. Black: What had happened before --

Mr. Earl Faircloth: In Georgia?

Justice Hugo L. Black: -- just particularly apportionment?

Mr. Earl Faircloth: In Georgia?

Justice Hugo L. Black: Yes.

And in Florida?

Mr. Earl Faircloth: Oh, before this one, there had been as my Brother Paul pointed out many times the legislature has considered the question and have not come up with the --

Justice Hugo L. Black: Had the court previously not issued an order that they do so?

Mr. Earl Faircloth: Yes sir.

Justice Hugo L. Black: And how long did they delay the court on that?

Mr. Earl Faircloth: They've always come up with a plan and they --

Justice Hugo L. Black: How many times did they come up with a plan that wasn't good?

Mr. Earl Faircloth: Well, this Court has now said they were all no good except this one and I'm hoping that this Court will say the plan now is good.

I haven't felt that the others were but I do feel that this one is.

Justice Hugo L. Black: You say what, haven't felt what?

Mr. Earl Faircloth: I haven't felt to the others met the standards of the Court in Reynolds versus Sims and other cases but I do feel that this one does.

Chief Justice Earl Warren: How many other plans did you say they had submitted in response to the court's order?

The legislature met and approved something that was rejected by the people in November of 1962.

Now, the Governor called the legislature back into session immediately after the general election in November of ‘62 and they met for 30 days and couldn't agree on anything.

Then, on March --

Justice Hugo L. Black: Were there any court orders in between them?

Mr. Earl Faircloth: The District Court had ordered that it be done.

I believe between the general election rejection of the plan in November 1962, the Court entered an order saying that our constitution and our formula, 38 senators, 95 house members were null and void and so we did meet, the court approved a plan, adopted in January of 1963 for 112 representatives and I think 43 senators, they met at the regular biennial session in 1963 and brought forth another plan which was appealed and which this Court held didn't meet the standard.

And then another plan in response to that was submitted which I didn't --

Justice Hugo L. Black: There's quite a difference in the history of this in Georgia, isn't it?

Mr. Earl Faircloth: Well, Georgia still hasn't come as close as we have Your Honor and --

Justice Hugo L. Black: Yes, but that -- there was quite a difference in the number of all court orders --

Mr. Earl Faircloth: Yes sir.

Justice Hugo L. Black: -- that had to be issued.

Mr. Earl Faircloth: Yes sir, very too.

Mr. Justice Black, what I'm suggesting is that in Georgia we have a plan which is agreed not to meet the standard but they have been given time within which to do it and I think the record of Florida legislature at this time on this performance it comes in my opinion so close and it's free enough of invidious discrimination that any further guidelines will be promptly acted upon.

Justice Hugo L. Black: How many years since the first order, was it decided?

Mr. Earl Faircloth: I believe the first order was issued some time in July of 1962.

Florida has been in it since Baker versus Carr and before and at that time was approximately the bottom of the list in the relationship of the population to representation in the state.

I make no defense of that but I do make a defense of the present attitude of the legislature and its acceptance of population has to guide and submit --

Justice Hugo L. Black: But do you mean by certain attitude that you approve what it's done?

Mr. Earl Faircloth: Well, I happen to agree with it and believe that there is a sense of the desire to comply with the guidelines as they understand them and they will.

Justice Hugo L. Black: But our problem is not whether they understand or whether it complied with the standards.

Mr. Earl Faircloth: I agree.

I agree exactly, it must be --

Justice Hugo L. Black: And that's what you are arguing, to comply with the standard.

Mr. Earl Faircloth: I do.

I do.

I haven't agreed in the past but I do with this plan.

Chief Justice Earl Warren: General, in the event that we don't agree that this a constitutional apportionment --

Mr. Earl Faircloth: What?

Chief Justice Earl Warren: -- would you suggest that we do?

By way -- you spoke of guidelines --

Mr. Earl Faircloth: Yes sir.

Chief Justice Earl Warren: -- and so forth, what would you suggest that we do?

Mr. Earl Faircloth: If there is to be a rule chiseled in stone as to percentage then if we knew that I believe the legislature would comply.

If there is to be a flexibility but not as much as we have in those in this plan tell us what it is and give us the opportunity to meet at our next session with this newly elected legislature which is the greatest population base legislature in history of our state and I think there will be a compliance.

I don't agree of course with my friend and Brother Mr. Paul in his lopsided view of the urban versus rural discrimination.

I note in his brief on page 22 I think it is, he makes a statement that no single urban county is overrepresented in both houses while at least five rural counties are.

I would submit that -- let's take three, Volusia County that's where the Daytona Beach is, not exactly a rural place overrepresented in both houses.

Pinellas, not St. Petersburg, not exactly a rural county, overrepresented in both houses and Brevard where Kate Kennedy is located and that too is the situation and that is taking Sarasota County where the culture and art center of Florida not exactly a rural county, it's the 12th largest county in Florida, overrepresented in both houses.

So, three out of 12 of the urban counties overrepresented in both houses and as Mr. Paul says five rural counties, overrepresented in both houses there are 67 counties leaving by his definition there 55 of them rural and five out of 55 being overrepresented in both houses as compared to three out of 12 urban counties overrepresented in both counties I think is a good record on the ballots.

So, may it please the Court, I submit that this plan under consideration by the court is a plan which is rational, it lacks invidious discrimination, it does not gerrymander and lead the three urban counties I've just mentioned went republic in the last election.

So, it's not gerrymandered for political advantage, it is a not gerrymandered for racial disadvantage or discrimination in any way and comes close enough to the mathematical guidelines that we've understood that I submit it is a plan that meets the constitutional standard.

Justice Hugo L. Black: What would you call these (Inaudible) as rural or --

Mr. Earl Faircloth: No sir, they are urban.

They're urban counties Your Honor.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Paul.

Rebuttal of D. P. S. Paul

Mr. D. P. S. Paul: I'd like to address myself first to the point raised by the Attorney General that we don't have standing to be here.

I must confess that he was making that argument, I was reminded a little of the line competes, what mad, what hot, what fevered pursued is this.

I think clearly that by virtue of the plan that we have filed in shown that appellant Swann has the right to a constitutionally apportioned legislature.

Under our plan, the appellant would be much more accurately represented than under the plan adopted by the legislature and the Attorney General makes the error several times in his briefs that saying the date is adequately represented and the Senate date is underrepresented in the legislative plan to the extent of 5.9%.

I think the important point to that made by Mr. Justice Douglas and that is that every other intervener who has attempted to intervene in these proceedings to present their particular underrepresentation problems has been denied, leaved to intervene on the ground that this appellant was expressing the position of all the under represented voters in the State of Florida.

For example, Senator McHugh from Jacksonville, Duval County which is badly underrepresented in this plan is sought to intervene on several occasions and he has been denied his right to intervene.

Of course the purpose of the rule, the standing to sue is to insure that there's an adversary proceeding or a case or a controversy and I think that has clearly been met here and I think that without question that we do have standing in this proceeding.

Justice Byron R. White: -- so what's your explanation to the affirmance that the Senate plan in Wyoming?

Mr. D. P. S. Paul: There may have been some justification in the record --

Justice Byron R. White: The case have been that you -- would you have any answer for citing Harrison against Schaefer against your position?

Mr. D. P. S. Paul: I don't think that that particular --

Justice Byron R. White: How about (Inaudible) against Davis opinion?

Mr. D. P. S. Paul: I think that those situations may not be comparable situations with the Florida situation.

Justice Byron R. White: (Inaudible)

Mr. D. P. S. Paul: I'm not familiar of what evidence may have been in the record in each of those cases but I think in the plan before us there is clearly no indication or no explanation anywhere in the Attorney General has still not told us of the reason for these variances except perhaps to suggest that there are political reasons.

Now, Mr. Justice Brennan was correct in Burns versus Richardson, the court very clearly said that there must be evidence in the record to sustain the variances and there was an opportunity in a hearing held and I read from the record at page 88, Judge Jones --

Justice William J. Brennan: That is in the record or the (Inaudible)?

Mr. D. P. S. Paul: That is in the record of the Florida case filed in this proceeding, the very last hearing held on this particular plan at page 88, Judge Jones says, “Is there any other evidence to be introduced to this hearing?”

I submit that's commendable candor on the part of the Attorney General because there isn't any evidence to explain and there can't be any to explain why these wide variances exist in this particular plan.

They are there as I said is pure unvarnished ad hoc litigation of these legislators who think the seats belong to them instead of the people that rejected them.

Mr. Chief Justice asked is to the number of plans submitted in response to the court's request.

There are at least 10 plans submitted in response to the court's request coming very close or as close as the plan submitted by appellants, submitted by political science departments, submitted by interested citizens, submitted by state legislators who have been in the minority in the state legislature.

The appellant's plan was a jointly submitted plan submitted by Dade County by Judge Swann, by the league of women voters and by the government research counsel which is a citizen's -- Independent Citizens Pacific Group in Dade County.

Chief Justice Earl Warren: Mr. Paul, I was also interested in how many plans the legislature had submitted in response to the court's order to reapportion?

Mr. D. P. S. Paul: There have been four plans submitted by the legislature.

Chief Justice Earl Warren: This being the fourth?

Mr. D. P. S. Paul: This is the fourth plan.

The first plan was rejected overwhelmingly by vote of the people of Florida in the legislature have never permitted the people to vote again on the reapportionment plan.

There is a chance that anyone of these plans that the legislature has adopted could ever be accepted by vote of the people in the state.

That second -- then the legislature came along the adopted a second plan without a vote.

In that plan, 14% of the people in the state elected the Senate and 29% of the people in the state elected the House.

This was after the -- this Supreme Court's decision.

The legislature then came along in 9th June of 1965 which was also after this Supreme Court's decision and again after the criteria, the Attorney General passed out a similar set of criteria to that session of the legislature and that plan was so bad that even our District Court held that one unconstitutional.

And now, they come with the fourth plan which we submit is also unconstitutional.

We submit --

Justice William J. Brennan: Excuse me.

Well, did you say that there's something in Burns and Richardson on the necessity for a hearing on justification?

Mr. D. P. S. Paul: No, not for a hearing Mr. Justice Brennan but for the necessity of evidence being in the record to sustain any variances or deviations that there maybe in the plan.

Justice William J. Brennan: Well, as I talk -- I should remember it I suppose but I don't, are they talking about multi member districts then or --

Mr. D. P. S. Paul: He were, that case deal is primarily with multi member districts but I think the rule would still be same.

Justice William J. Brennan: Right.

Mr. D. P. S. Paul: As the Attorney General has said, unless you are going to chisel a rule in stone and send it on a stone tablet to the Florida legislature you are not going to get a proper reapportionment plan.

We submit that this is clearly a case which begs for judicial relief and in time for opening of the Florida legislative session in April of 1967 and before this malapportioned legislature attempts to tinker with the basic law of our state and submit a new constitution.